STATE EX REL. RETAIL STORE EMP. UNION v. Black
| Citation | 603 S.W.2d 676 |
| Decision Date | 29 July 1980 |
| Docket Number | No. 41813.,41813. |
| Parties | STATE ex rel. RETAIL STORE EMPLOYEES UNION LOCAL NO. 655 et al., Relators, v. Hon. Gary R. BLACK, Sr., Circuit Judge, and Hon. Curt M. Vogel, Associate Circuit Judge, Respondents. |
| Court | Missouri Court of Appeals |
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Diekemper, Hammond & Shinners, Jerome A. Diekemper, Richard Shinners, Clayton, for relators.
McMahon, Berger, Breckenridge, Hanna, Linihan & Cody, William W. Cody, St. Louis, James R. McHaney, Cape Girardeau, for respondents.
This prohibition proceeding was initiated by the relators, members and representatives of the Retail Store Employees Union, seeking relief against the ruling of the respondent judges of the Circuit Court of Perry County, Missouri. A writ of prohibition is sought to prevent enforcement of a temporary restraining order issued by the respondents during a labor dispute involving relators. The relator Union contends that the circuit court was wholly without jurisdiction to order an injunction. Our preliminary writ was issued. We now quash the writ as improvidently granted to the extent that it prohibits enforcement of specific injunctive relief that the circuit court had jurisdiction to order. The cause is remanded to the circuit court for further proceedings.
Relator Union is the exclusive bargaining agent for the employees of the Price & Kelly Big Star Store, which is one of about twenty-four retail stores located in Perry Plaza Shopping Center, Perryville, Missouri. During negotiations for a new collective bargaining agreement, the Union initiated an economic strike and commenced picketing on the sidewalk directly in front of the Big Star store. The Union contends that the picketing was peaceful and did not block ingress to and egress from the store. Big Star asserts that the pickets did in fact obstruct the access of customers, non-striking employees and deliverymen and hindered business activities within the canopied sidewalk area used as a selling and storage area. On May 11, 1979, agents and representatives of Big Star, in the presence of the county sheriff, threatened the pickets with arrest if they did not move the picket line off the premises of Big Star and Perry Plaza. The public property nearest to Big Star is a shopping center entrance about twenty-five feet from the sidewalk, and the picket line was moved to this location.
On May 14, the Union filed charges with the National Labor Relations Board (NLRB) against Big Star and Perry Plaza alleging violations of the National Labor Relations Act (NLRA).1 A complaint was issued by the Regional Director of NLRB and a hearing was held on July 24 and 25, 1979. Meanwhile, on June 26, 1979, picketing resumed on the sidewalk in front of Big Star. Over the next few days, the picketers were repeatedly requested to leave the premises, but they declined to depart. On June 29, 1979, Big Star and Perry Plaza filed a petition for temporary restraining order and injunction in the Perry County Circuit Court. The petition, accompanied by an affidavit from the owners of Big Star, alleged that the picketing was obstructing access to the store. It requested that the court enjoin all picketing on the private property of Big Star and Perry Plaza including the sidewalk area in front of Big Star. An order to show cause and restraining order prohibiting picketing on Plaza property was issued and the petitioners were required to post a $2,000 bond. Hearing was set for July 18, 1979.
On July 5, 1979, the Union retaliated by filing a petition for writ of prohibition with this court to prevent the circuit court from enforcing its order. We responded by granting a preliminary writ. During oral argument the parties disclosed that the Union had discontinued its strike, the employees had returned to work and that picketing had ceased. The NLRB had not yet issued its decision on the charges lodged by the Union.
Three fundamental issues are raised in this dispute: (1) whether the National Labor Relations Act divests state courts of jurisdiction to enjoin picketing which obstructs access to an employer's premises; (2) if the Act does not preempt jurisdiction, whether the initiation of an action with the National Labor Relations Board precludes state court jurisdiction over the questioned picketing; (3) whether a state court's injunction is overbroad if it prohibits all picketing upon the employer's private property.
United States Supreme Court decisional exposition on the subject fills the legal cornucopia to overflowing. The decisions establish the general principle that the NLRB has exclusive jurisdiction over activities which are either arguably protected by section 7 of the NLRA2 or arguably prohibited by section 83 of that Act. E. g., San Diego Building Trades Council Local 2020 v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959); Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546 (1955); accord State ex rel. Girard v. Percich, 557 S.W.2d 25, 39 (Mo.App.1977). But the Supreme Court has acknowledged exceptions to the general pre-emption rule and permitted local courts and agencies to adjudicate matters of particular local interest. See, e. g., Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978) (trespass); Farmer v. United Brotherhood of Carpenters Local 25, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977) (); Linn v. United Plant Guard Workers Local 114, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966) (); United Auto Workers v. Wisconsin Employment Relations Board, 351 U.S. 266, 76 S.Ct. 794, 100 L.Ed. 1162 (1956) (). State courts and agencies have been recognized as retaining the power to exercise jurisdiction over private actions to enjoin obstructions to access. Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151 (1957); United Auto Workers v. Wisconsin Employment Relations Board, 351 U.S. at 272, 76 S.Ct. at 798. Following Youngdahl and United Auto Workers the Supreme Court explained that the preemption issue must be considered in two parts: activities arguably protected by the NLRA and activities arguably prohibited by that Act. San Diego Building Trades Council Local 2020 v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775. Subsequent cases clarify that the preemption question as to each category turns primarily on whether preemption is necessary to avoid conflicting adjudications which would interfere with the regulatory activity of the NLRB. Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, 436 U.S. at 197, 98 S.Ct. at 1753; Farmers v. United Brotherhood of Carpenters Local 25, 430 U.S. at 305, 97 S.Ct. at 1066; Amalgamated Association of Motor Coach Employees v. Lockridge, 403 U.S. 274, 285, 91 S.Ct. 1909, 1917, 29 L.Ed.2d 473 (1971).
In our view, this case involving alleged obstruction of access to the employer's premises does not present a significant danger of conflicting adjudications. Thus, the jurisdiction of the state courts should not be preempted. In this regard we follow the reasoning expressed in Kaplan's Fruit & Produce Co. v. Superior Court of Los Angeles County, 26 Cal.3d 60, 603 P.2d 1341, 160 Cal.Rptr. 745 (1979). The analysis proceeds in two parts, first considering the doctrine of preemption as it relates to arguably protected activities, then considering the doctrine as it relates to arguably prohibited activities.
When dealing with arguably protected activity the doctrine of preemption does not apply to the case before us. Obstruction of access is not protected by the NLRA; a court injunction barring such acts, so long as it does not bar legitimate union conduct, invades no right of the union under the Act. The Union contends that "there has been no assertion in this case that the picketing of plaintiffs is in itself unlawful" and that picketing on the sidewalk directly in front of Big Star "is clearly protected, or may fairly be assumed to be protected, by section 7" of the NLRA. We find it clear, however, that Big Star has sufficiently placed in issue the question of obstruction and interference with access to its premises. In an affidavit in support of their petition for temporary restraining order and injunction, the owners of Big Star stated that the pickets had placed themselves "in front of the entrance-way . . . and have attempted to prevent or interfere with customers of Price & Kelly Big Star and employees and servicemen" attempting to use the sidewalk and entrance-way; further, that "their customers have been denied an unimpeded access to" the store. Thus, the circuit court had before it more than the bare question of whether peaceful picketing was to be permitted on private property as opposed to limiting it to publicly owned areas. Additionally, the Union's assertion that there has been no violence or blocking of ingress and egress to Big Star's store has been formally denied by Big Star thereby stressing its claim of improper activity.
It appears that there is a factual dispute as to whether the picketers were actually obstructing access to the store. Although it may be true that if there was in fact no obstruction of access the picketing might be safeguarded by the NLRA, it does not follow that the case therefore "arguably" involves protected activity. An injunction to prohibit obstruction of access— an unprotected activity—does not preclude the picketers from engaging in other protected activity and does not require the exercise of NLRB expertise. As explained in Kaplan, an obstruction of access case:
The possibility that the Union is innocent of the charged conduct may be grounds for denying injunctive relief, but it does not invoke the preemptive jurisdiction of the board. Indeed, whenever any accusation is brought against a union, the charge...
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